January 21st, 2019

The Death of the Stick Shift (Blame Safety) – updated

My first car looked a bit like this. Loved it.

My first car was a 1982 Honda Accord hatchback. Five-speed stick. Roll down windows. Manual locks. No A/C.

I learned to drive stick when my older brother needed me to drive his manual transmission car back from Philadelphia to Long Island. I got a lesson on Saturday. And drove it solo out of Center City Philly to New York on Sunday. Only stalled once.

My theory in buying that no-frills Honda was simple: The fewer automated things, the fewer things would break. And nothing ever broke. It was a great car and I used it for many a trip back and forth to Buffalo during law school.

But cars and Manhattan are not a good match and when I moved there in 1986 it was time to kiss it good bye. When I needed a car I would rent one and those rentals were far cheaper than the cost of garaging it.

(Hang with me a bit here and I’ll get to the safety and personal injury stuff.)

When I moved to the suburbs after 13 years of city living it was time to motor up again. But I had a problem, and part of that problem was a pipestem driveway. And Mrs. NYPILB (she loves that acronym!) didn’t drive stick, didn’t know from clutches, and didn’t want to learn the three-pedal two-step. In twenty years of marriage that’s the worst I can say about her so I figure I’m pretty far ahead of the game.

Having a two-car family and a pipestem driveway would mean constant car shuffling. I let the fun of driving stick slip away since my car was mostly going to the train station anyway. And that’s just the way it was.

When Dear Daughter was old enough to drive, she followed in her mother’s footsteps.

But Dear Son thinks differently. He’s a car guy. Want to know what that car in front of you is? He’ll tell you in two seconds based on the tail lights. At night. Ask him what he wants to be when he gets older and he’ll tell you a McLaren owner. But he’ll settle for a Lambo if he has to.

Until he started talking car stuff, I had no idea that tail lights could be an art. Or that there really was much difference. I was simply oblivious since I’m not a car guy.

So with the lease being up on my Subaru Impreza hatchback, I needed to go car shopping. But I confess that I love this vehicle because of its all wheel drive and the car’s many safety features, which you can’t dismiss when you’re looking at teenagers. Dollar-for-dollar you get a lot of bang for the buck.

I took Dear Son with me to look at a couple of cars, including the next gen Impreza. Guess who wants to drive stick? Yeah.

But the salesman let me know the deal: If I want the stick and clutch, I can’t get the Eye Sight Driver Assist. What’s Eye Sight? That’s the computer that not only beeps when you change lanes without signaling, but more importantly will automatically brake when a car or pedestrian is too close in front.

So if a car coming at you in the opposing lane suddenly makes the dreaded left turn in front of you, or a drunk pedestrian steps off the curb in front, the computer might well react before you. Split seconds can make a difference. Literally.

As you might assume from the bare bones ’82 Honda I started with, I’ve never been one for tech features in a car — I’m the type that never uses the cruise control. Digital doodads don’t light my fire. I want to drive a car, not be driven. And I think self driving features are dangerous because they promote inattention.

That’s one of the things about driving stick — you can’t be inattentive. Unless you are cruising on the highway you are constantly engaged. You’ll never see someone driving stick and texting, or eating a hamburger, or even drinking coffee. Not in local traffic, anyway.

Most collisions (not accidents) happen due to driver inattention, and driving stick is the opposite of inattention.

But there’s no getting around the fact that the Eye Sight Driver Assist is not only good tech, but tech that remains invisible until called into play. It’s part of the wave of advanced safety features that are coming as car companies automate their vehicles.

It’s part that same tech wave that will decrease traffic into emergency rooms, and the offices of personal injury lawyers. If you’re in law school thinking this is what you want to do, I strongly suggest you make a sharp turn sooner rather than later.

That tech, however, is incompatible with a manual transmission. You can choose between a valuable safety feature — one that will become far more ubiquitous as the years roll by — or the fun and engagement of driving stick. But you can’t have both.

Last year Motor Trend wrote that Subaru might kill the stick altogether in the name of safety. And Motor Trend wasn’t the only one reporting the news of the likely demise of the company’s stick.

(Another tech development that will help drive a stake through the stick is an app on your phone that allows you to remotely start your car minutes before you get there. When it’s 100 degrees outside, or 10 degrees, that’s going to be a valuable and desired feature. But manual transmissions get parked in gear, not neutral, and you can’t remotely start a car that’s in gear.)

Driving a manual transmission is not only fun, but a valuable skill. It allows you to feel how the car works, and be more engaged with your surroundings, even if you’re clueless under the hood.

Manual transmissions have, of course, been declining in the United States for several decades, due to ease of use for the automatic. Manual transmission used to at least have the advantage of being cheaper engines and better on gas, but even that has changed. The computers on the automatic now get better mileage than you can with the clutch.

When you add up the long term decline of stick due to ease of use of the automatic, with the breakneck speed of technological safety improvement, you get a recipe for stick-the-fork-in-it-its-done.

In ten years the manual transmission, beloved by a decreasing percentage of car drivers, will be little more than a specialty item that needs to be custom ordered. It pains me to say it, but the stick is dead. Ultimately killed by safety.

Update, October 8, 2019: The stick, as per this story in Gear Patrol, moves one step closer to demise with this painful lede:

Subaru has announced its updated pricing and trim level changes for the 2020 Impreza. Tucked away in the press release, however, is a bit of bad news for enthusiasts: there’ll be one fewer Subaru manual transmission option available as we move into the 2020 model year.

Ouch. And the reason is, as noted above, incompatibility with the safety tech of their Eye Sight computer safety stuff:

Development costs to add a new manual transmission are high. The take rates for them now are low. They have no place in an “electric” or “electrified” future and prevent universal implementation of Subaru’s EyeSight safety technology.

And the Impreza is not, by any means, alone:

The Outback, Forester and Legacy have all lost their manual transmission options entirely. Even the base WRX could be CVT-only when the next generation materializes. (These developments should not surprise at a time where even the BMW M3, the ultimate driver’s car, barely kept its stick shift.)

If you want to drive a stick, or make sure your kid(s) learn, you’d better do it sooner rather than later.

January 8th, 2019

Judges to U.S. on Shutdown: ‘Pound Sand’

What, you may wonder, happens to suits against the federal government when the money spigot closes? And if you have a suit against the U.S. — say a Federal Tort Claims Act action — what should you do?

Good questions. Glad you asked.

Many courts have simply issued stays of all civil cases. Civil ones aren’t as urgent as criminal cases, as no one has their liberty in jeopardy.

But you know what? At least two judges in civil actions have now told the Department of Justice to go pound sand. One in West Virginia and one in Puerto Rico.

In the Puerto Rican case, a judge called the government request for a stay “laughable.” As per the Bloomberg article:

In a ruling denying the government request, U.S. District Judge William G. Young said lapses in federal appropriations, like the current one triggered by President Donald Trump’s demand for funding for a border wall with Mexico, aren’t a government “policy” that could theoretically justify staying such a lawsuit.
“Let us talk plain — they are simply an abdication by the president and the Congress (which could override a presidential veto) of the duty to govern responsibly to the end that all the laws may be faithfully executed,” Young said in the Jan. 2 ruling in San Juan. “Nor does such a lapse in any way excuse this court from exercising its own constitutional functions.”
Young…sarcastically compared the situation to a major corporation that “for whatever reason” decided not to pay its attorneys involved in pending litigation and instructed them not to interact with the court.

“Then the corporation says to the court, ‘We greatly regret any disruptions caused to the court and to other litigants, but please stay all proceedings until we get our act together.’ This does not constitute ‘good cause’ for any stay,” Young wrote. “In fact, it is laughable.”

Order-Stay Denied Download

Lawyers hate it when the judge calls your arguments “laughable.” There was no justification, in Judge Young’s view, for treating a plaintiff and defendant differently when it comes to moving a case forward. An excuse that doesn’t work for the plaintiff won’t work for a defendant.

In the West Virginia action, one judge issued an order granting a stay for all civil cases affected by the shutdown. But another judge said, nope, no way, not in my courtroom.

U.S. District Judge Joseph Goodwin issued a general order Jan. 2 exempting civil cases assigned to him from the federal shutdown.

So what happens if you have an action against the federal government? We’re not talking about immigration cases or police department consent orders or the census. We’re talking nuts and bolts basic cases of the type that don’t find their way into the news.

My suggestion? If a case is ready for suit, file that suit. Push the case forward. Take advantage of the fact that the defendant might not have a lawyer right now due to its own malfeasance.

Can you imagine starting a suit and the government failing to answer? A default. An automatic win for the plaintiff. Move straight forward to an assessment of damages.

Will a judge allow the default to go forward? It seems like it will depend on the judge. Some have clearly told the government to pound sand while others are cutting it slack.

But the argument by both Judges Goodwin and Young is compelling: The plaintiff in a civil suit against the U.S. would not get the benefit of a stay because the lawyers ran out of money, so the U.S. shouldn’t either.

December 29th, 2018

Google Maps Comes to New York – and other legislative stuff

People love to yell and scream about those damn politicians, don’t they? Well, since fair is fair they should get a solid pat on the back for getting stuff right, shouldn’t they?

New York’s Gov. Andrew Cuomo signed a bill Friday that allows satellite-mapping services, such as Google Maps, to be admitted into evidence at trial. It was passed in the waning days of the last legislative session ending in June, and Cuomo just inked it. (Part of CPLR 4511)

I know, that’s a little thing, isn’t it? Especially since federal courts are already doing it.

But it’s one of those little things that oils the wheels of justice so that they creak along just a little bit more efficiently.

The bill summary is here:

“Allows judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption.”

And, of course, there isn’t anything even remotely partisan about it. It just makes it a little bit easier to move things along when you stand in the well of the courtroom.

Last year, for those that remember back that far, there had been several new laws regarding civil justice that improved things in New York, including a terrific change in Supplementary Uninsured/Underinsured Motorist (SUM) insurance, a change in the statute of limitations in medical malpractice cases to add a date of discovery rule for cancer cases, and a modest change in the venue law.

With the both legislative houses now in the hands of one party due to the Blue Wave that swept the country as backlash to Trump there is the opportunity for more progress (and yes, more mischief).

Maybe we will finally see the Grieving Families Act pass for the families of wrongful death victims?

Perhaps we can finally stop the judicially-created law that allows defense lawyers to interview a plaintiff’s doctors — off the record and without plaintiff’s counsel even being notified.

Maybe we will see some anti-SLAPP legislation?

(Hey, maybe, maybe we will even see my pet project, Eric’s Law, move forward to wipe out some of the last vestiges of the idiotic ad damnum clause?)

I’ll be watching, as the coming session has the opportunity to be one of he most significant in many, many years.

December 20th, 2018

Trump and the Presidential Veto

[Cross-posted from Above the Law]

On Thursday morning Donald Trump threatened to veto all legislation over his wall. No such Trump veto will happen. Ever. On any bill.

I don’t get into the realm of political punditry often as it’s not what I do — I usually confine political comments to those issues that deal with tort “reform” — but today we make an exception because this goes, in essence, to all bills sent to the president.

We start this short analysis with the observation that Trump hasn’t vetoed a single bill. He’s the first president since James Garfield to act that way, and Garfield was only in office six and a half months before being shot dead.

Before that was Millard Fillmore who left office in 1853, who also served a partial term as he took office upon the death of Zachary Taylor. Taylor didn’t veto anything, but was in office only 16 months. Before that was William Henry Harrison, who died a month into office.

The last president to go a full term without a veto? John Quincy Adams, our sixth president who left office in 1829.

And a few more simple observations: First, Trump loves signing things and makes a big show of displaying his signature, even for executive orders.

Second, he campaigned as a “deal maker.” It matters not one whit if you agree or not, or think he’s good or not. This is the persona he wants the world to believe.

And now, with the House of Representative turning to Democratic control, any bill that passes both the House and Senate that is in any way contentious will be the result of bipartisan compromise. A deal.

So if Congress passes a bill — even one that’s a complete anathema to his other policies — he will sign it and claim “credit.” Even if he had nothing to do with its negotiation.

Envision, for a moment, a bipartisan compromise bill on immigration. Imagine it chock full of things Trump claims to hate and campaigned against.

Will he sign it? No, the contents of the bill don’t matter. Because more important than the contents is that he would be able to claim “credit” for something, even if he campaigned against it. ‘Look at me, the deal maker.’

Will Trump supporters have a feeling of betrayal — one of the most powerful human emotions? Possibly. But that’s a column for another day. Trump’s first instinct has always been to look inward as to what was good for him today.

Why write about this now? Because every so often you will see Republican Senators claim that they won’t pass a bill because the president won’t sign it. Don’t believe it. It’s a diversion.

Trump will sign anything.

December 18th, 2018

A Lawyer Falls on His Sword

You don’t see me writing about criminal law here for good reason — it’s not what I do. But something happened during the sentencing hearing for General Michael Flynn today that deserves mention.

As many know, he was showing up to be sentenced for lying to the FBI about his contacts with Russians and with regard to statements he made about his involvement as an agent for Turkey. Given that he was Trump’s National Security Advisor, and he was compromised, this was obviously a big thing.

But during the sentencing, press reports were that Judge Emmet G. Sullivan was, shall, we say, a bit irritated. To say the least. He called Flynn’s conduct “a very serious offense” and said he was not hiding his “disgust” at what Mr. Flynn had done. At one point he asked prosecutors if they had considered charging him with treason.

A small part of that anger may have been due to the fact that, prior to the sentence, Flynn’s lawyers suggested he might have been set up, or duped, by the FBI.

And this is the reason that I write on this subject — because it has nothing to do with criminal law but about the relationship between attorneys and clients in general:

At the hearing, Judge Sullivan brought the subject up, making sure that Flynn distanced himself from the comments of his lawyers and fully acknowledged that he knew he wasn’t supposed to be lying to the FBI, even if they didn’t tell him he was the subject of an investigation.

Who’s idea was it to vacillate a bit on the reason Flynn got busted? to suggest that, perhaps, he was somehow entrapped? Lawyer or client? Beats me. But at the hearing it didn’t matter to the lawyer.

At the hearing, to spare his client, Flynn attorney Rob Kelner said his client shouldn’t be punished for the conduct of his attorneys. He fell on his sword; he threw himself under the bus; he bit the bullet. No matter the metaphor you choose, the lawyer owned the problem and told the court the bucks stops with him.

Because that’s what a good lawyer is supposed to do.